HM Advocate v Munro & Sons (Highland) Ltd

Summary

This judgment sets out the principles to be used when sentencing health and safety cases. 

Nature of the case

This case is about the principles that judges should consider when sentencing in serious health and safety cases. 

Facts

Munro and Sons (Highland) Ltd. (the company) had bought a digger second hand from another company. The company sent one of its lorry drivers to pick up the digger and bring it back to the company’s base. 

To do this, the lorry driver used a low loader trailer. The digger was secured to the trailer with two chains. While transporting the digger on an uphill road, the chains broke and the digger fell off the back of the loader, hitting a car. The passenger in the car was killed, and the driver was severely injured. 

It was found that the weight of the digger had been too much for the chains and the loader to bear. It was also found that the handbrake of the digger was broken, so did not stop the digger rolling backwards. 

The company pled guilty to a breach of its duty as an employer under section 3 (1) of the Health and Safety at Work etc. Act 1974 to protect the health, safety and welfare of people (other than the company’s own employees) who might be affected by their business.

The sentencing judge gave the company a fine of £3,750, discounted by 25% from £5,000. The Crown appealed against the sentence as being too low. 

Issue

The judges in this appeal considered whether the level of sentence given was too low, and also set out the principles that judges should follow when dealing with health and safety cases. 

Decision

The judges decided that –

• The fine in this case was “far too low”. They substituted a fine of £40,000, which was discounted by 25% to £30,000. 
• That the sentencing judge had been wrong to focus only on the ability of the company to pay a fine, rather than looking at the seriousness of the offence and any aggravating or mitigating factors. 
• The judges agreed with a number of principles that had been laid down in a previous case from England and Wales[1] about sentencing health and safety cases.  These are -

1.       Failures by employers to obey the law on health and safety were very serious, because that law is the basis for protecting the public’s health and safety. 
2.       In the past, the fines for such offences had been too low.
3.       It is not possible to say that a fine should have a specific relationship with the turnover or net profit of the employer. Each case needs to be looked at on its own facts.
4.       It may be helpful to look at how far short the employer fell of the appropriate standards.
5.       Generally, where the breach of health and safety causes death that is an aggravating feature. Like in cases of dangerous driving, causing multiple deaths is more serious than a single death, but it is not simply about the numbers involved. 
6.       If the employer breaches health and safety because they want to make a profit, that is a serious aggravation of the offence. 
7.       The degree of risk and the extent of the danger may also be relevant, in particular whether it was an isolated failure or one that continued over a period of time. 
8.       The employer’s resources and the effect of a fine on its business are important. Any fine should reflect the means of the employer. 
9.       Mitigating factors will include (a) quickly admitting responsibility and a timely guilty plea, (b) steps taken to sort out the problem, (c) a good safety record
10.   Above all, the objective of a fine should be to achieve a safe environment for the public and bring that message home, not only to managers, but to shareholders. 
11.    The objective of sentencing in this type of case is to impose a fine on companies that is severe enough to discourage breaches of health and safety. This purpose may mean it is difficult to achieve consistency between one case or another. It may also be difficult to achieve proportionality between the fine and the gravity of the offence. Consistency may not be the primary aim of sentencing in this area of law. 
12.    Judges can take a more serious view of the breaches where there is a “significant public element”, particularly where the public has to trust a company to carry out work safely and efficiently. Judges can also take account of the fact that good fortune or luck meant that the risks or possible consequences were not as bad as they could have been. 

[1] R v Balfour Beatty Rail Infrastructure Ltd [2007] Bus. L.R. 77

HM Advocate v Munro & Sons (Highland) Ltd